Discussing ideas and issues related to mining in Canada

July 25, 2011

Europe's Court of Justice Renders Judgement

The global nickel industry lost not only an important legal case last week, it lost credibility with the public. Can it rebuild the good will it once had?

By Patrick Whiteway

On July 21, the Court of Justice of the European Union published its long-awaited judgement in a case brought by the Nickel Institute three years ago (Case C-14/10).

The Court ruled against the Nickel Institute.

Since it was created in 1984,the Nickel Institute has done a lot of good. It has informed and educated a generation of engineers and designers about the use of nickel and nickel compounds. It's sister organization, the Nickel Producers Environmental Research Association, has conducted important science on a shoe string budget. And the Institute has led the global mining industry in the recognition of issues important to society: climate change, human health, life cycle assessment, metals recycling and sustainable development.

In deciding, three years ago, to change course and devote tens of millions of dollars to pursue a legal case against the European Union's desire to regulate the hazards posed by nickel substances, it crossed a line.

No longer could the nickel industry be seen as a cooperative partner, acting with society to realize the many advantages that this metal can bring to wide areas of human endeavour.

No longer could the nickel industry be seen as placing a high priority on re-investing its profits into conducting the necessary science that would demonstrate the safety of its products.

No, it became a public adversary. Three years ago, the nickel industry decided to openly oppose society's desire to regulate the hazards associated with nickel.

By bringing the case before the courts in Europe, the nickel industry committed a fatal error in logic. It confused hazard with risk and in the process lost all credibility with the public.

Now that the clear-headed justices of the Court of Justice of the European Union have revealing the industry's hubris, can the nickel industry rebuild the good will that it once had?

Perhaps it can.

First, the legal brain trust that persuaded the Nickel Institute executive committee and Board of Directors of the efficacy of the legal case in the first place must go. There must be a clear break with the past.

Secondly, the member companies of the Institute need to more effectively challenge the opinions of it's largest member (Russia's Norilsk Nickel) when it comes to issues that shape the industry's public persona.

Sadly, there are fewer Canadian voices on the Board of Directors of the Institute to challenge the Russians.

And lastly, the Institute must re-focus its efforts on science and be more open and transparent about issues important to the public (such as updating nickel life cycle assessment data to include data from Norilsk and laterite mining).

Also, it would be healthy for the Institute to have an open and frank discussion on whether or not nickel should be used in human food and water contact applications. Specifically: does the nickel oxide in the passive layer of austenitic stainless steel pose a hazard to human health?

For the new President of the Institute to say that the loss last week of an important legal case is "regretable" is a collosal understatement. Rather, he should see the Nickel Institute's loss as an opportunity to renew the institution. And he could begin that process by openly admitting that the Institute was wrong to bring the case to court to begin with.

"Nickel carbonates were classified as carcinogenic and toxic, to the dislike of its producers. In a British case, the High Court of Justice (England and Wales) asked the ECJ whether the Commission directives regulating this classification was valid or not. The AG finds that the Commission did not manifestly exceed the bounds of its discretion where it based its nickel carbonates decision on findings with regard to other nickel compounds. This method of predicting properties of chemicals based on the “read-across” method is generally accepted as scientifically valid, and is explicitly endorsed in REACH and implicitly in the EC rules at stake in this case. As for the accusation that the risks during normal handling or use of the substances were not assessed (some nickel carbonates were said to be used only in laboratories) , the AG notes that in his view, hazards and risks are being confused here. The EU system for classifying and labelling substances is based on the reporting of information relating to the hazards associated with substances, as is stated expressly in Commission Directive 93/67/EEC laying down the principles for assessment of risks to man and the environment of notified substances. Under Article 2(2) of this Directive, ‘hazard identification [of a substance]’ is defined as ‘the identification of the adverse effects which [that] substance has an inherent capacity to cause’. Hazards must therefore be classified independently of the manner or location in which the substance is used. Risk assessment on the other hand is concerned with the likelihood that one of the hazards associated with a substance will occur as a result of human or environmental exposure to that substance. Risk management measures thus may vary considerably depending on the conditions and types of use. Other arguments also did not disclose issues that could affect the validity of the contested Commission directives."

Edited by Thomas E. Graedel and Ester van der Voet: Linkages of Sustainability"To meet the challenge surrounding the sustainable use of resources, improvements are needed in many areas: technological innovation across the entire mineral life cycle (e.g. improvements in exploration, mining, and processing methods, product design and recycling system design), new policy instuments, more complete databases, more integrated models, better-informed stakeholders and citizen iniatives, and various types of entrepreneurship. Most importantly, the challenge of sustainability requires a generation of practitioners and analysts with a multidisciplinary understanding of a broad set of issues."